*1 Firestone, "Without 104 Wn.2d 700 P.2d court would be the note and deed of in the record the trust con- might order of documents attempting execution Setterlund, material, at 26. tain but unknown terms.” very again once necessary It seems to reiterate agreeing method for negotiation, litigation, proper not is the and sell real upon Agreements buy these vital terms. allow on material terms to enough estate "must be definite those terms.” Set supplying enforcement without the court terlund, 104 at 25. The facts of this case demonstrate Wn.2d alleged agreement which very ambiguity renders here as meeting unenforceable. There was no of the minds for the except of the material terms of the contract This is price. enough form enforceable contract real We Court purchase property. and sale of reverse the and affirm the the trial court. Appeals, decision of Andersen, C.J., Utter, Brachtenbach, Dolliver, Guy, JJ., Johnson, Madsen, Smith, concur. 28, 1994.
Reconsideration denied December 13, 1994.] En [No. 61542-0. Banc. October Gary Locke, Carrick, al, et Don Respondents, Jeffery Executive, al, Petitioners, et Nicolai, al, et Intervenors. *3 Attorney, Maleng, Prosecuting Yerxa, Quentin and
Norm petition- Deputies, Bundy, Slonecker, and Susan Kristofer ers. respondents. Schwartz, Irwin H.
John W. and Wolfe by Hoag, Cline, Garrettson, Vick, & James M. Tarantino for intervenors. County Gary King Locke, Executive, J.
Durham, King County King County District officials, the and other grant- ruling by Superior of a the Court Court seek review ing injunction preliminary Car- Don a to the injunction precluded Federal Elston. The rick and Scott Way conducting into the Court from District Intervening on behalf Jackson. death of Antonio Respondents Rayborn, Jeffery Michael Nicolai presence King County police at the scene whose officers two inquest. precipitated the death Superior found that both RCW 36.24 and the Court King County implementing that statute Executive Order separation Af- violate the doctrine. constitutional arguments sides, well as ter consideration of the of both policies animating powers doctrine, we Kang inquest statute nor the conclude that neither the present problem. procedures Accord- a constitutional ingly, and remand for initiation of we reverse the trial court into Jackson’s death. 14, 1993, al- Jackson was observed
On December Antonio Safeway legedly shoplifting pack cigarettes su- from security guards stopped permarket. him One of the store’s brought him back inside. after he exited the store and Subsequently, and was chased Jackson fled the store security guard Respondents herein, Don Carrick and They caught him Scott Elston. Jackson and held on the police ground King County police until officers arrived. The proceeded to handcuff Jackson. When Jackson did officers allege police comply directives, with the officers they signs that he was breath- checked his vital and noted They immediately ing pulse. administer and had a did not lifesaving Jackson, when aid but summoned a medic unit unresponsive. ar- When the medics Jackson continued to be pulse they unsuccessfully they rived, could not find a sought later declared dead at the to revive Jackson. He was King County autopsy Medical An conducted scene. asphyxia died from Examiner determined that Jackson had compression of the neck and chest. due to Maleng, King County On Norm December Gary requested Ex- Locke, Prosecutor, death. ecutive, into Jackson’s convene coroner’s Judge January agreed 3, 1994, he contacted and on Locke King County Presiding Judge Utigard, District assign request to conduct Courts, inquest that he *4 death. into Jackson’s 7, 1994, in March front was scheduled for February Judge Way 2, On Court Leverette.
Federal District challenge Respondents moved to 1994, Carrick and Elston alia, violations separa- inter inquest, alleging, doc- doctrine, of fairness appearance tion of King trine, supremacy the state clause. and were both that there responded Prosecutor’s office were, violations, that even if there constitutional and as its not on such violations District Court could rule fact-finding inquest. over preside mandate was to had proved not Respondents held that Judge Leverette re- and denied the unconstitutionality, the procedure’s quest. King in then filed a civil action Court, constitutional
Superior raising the ahove-mentioned is- Bates issues, Judge March well as others. On a show restraining order ordered temporary sued argument hearing hearing for March 1994. After cause regarding constitutionality procedure, of the inquest enjoining Judge preliminary injunction Bates issued and Executive Order inquest, finding both RCW 36.24 (AEP) PHL 7-1 are unconstitutional under the federal constitutions. powers doctrine of both the state and He any presented. did not rule on the other issues court, which was County sought direct review from this granted. Inquests
Nature is a culpability-finding pro "A coroner’s 86, 88, 469 Ogle, State v. ceeding.” P.2d 918 Wn.2d Rather, determine purpose coroner’s death, died, was and what were the who what the cause of death, including the identifi surrounding circumstances may criminally actors who liable for cation the duties of the 36.24.040. 36.24 outlines death. RCW general, inquests partic and describes county coroner empanel empowered coroner summon ular. The (RCW (RCW 36.24.020-.030); witnesses to subpoena jurors (RCW 36.24.100- 36.24.050); warrants and to issue arrest .120). district court provides the statute Additionally, available. RCW if coroner is not act as coroner in partic inquests deals with RCW 36.24.020 36.24.160-.170. that: ular, part, provides,
134 is to be convened county inquest where an The coroner in the court notify superior
pursuant chapter shall all the evi- of to hear provide persons jury to serve as a a into and render inquire and to concerning dence the death and be selected on cause of death. Jurors shall true verdict quali- and shall have the same summoned in the same manner at- prosecuting 2.36 RCW. The specified chapter fications as any in advance of having jurisdiction shall be notified torney held, may present be and at his discretion such to be . . of the same. . assist the coroner in the conduct RCW 36.24 coroner’s duties under King County, In in the rule charter by the home originally were vested Charter King County Health. of Public Department medi- a of the created division 920.20.30. A later ordinance Health, Public of Department within the cal examiner coroner, "except duties of the given which was most of the is vested which function holding inquests, for the of 2.24.110(A). King County Code King executive”. county (AEP), July as of PHL 7-1 effective Executive Order County 28, 1990, conducting in- of policies procedures
establish[es] any of death involv- and circumstances quests into the causes King agency within ing any law enforcement a member exceptional cases . . .. County and into other . . . held for inquests Order mandates The Executive agent. law enforcement involving death request Executive dictates that Executive Order Asso- Judges the District Court presiding judge on the to conduct "furnish ciation in Appendix Court Rules according to the Executive’s behalf be waived Those court rules Order 6.6. 9.1.” Executive § serves the or where waiver circumstances” "exceptional 6.8. Executive Order interest”. "public § Separation Powers American principles fundamental One of the governmental powers system is that constitutional — legislative, the execu among departments three divided — from the other. separate tive, judicial and that each and the review Osloond, P.2d 805 App. 60 Wn. State constitution, Washington’s denied, 116 Wn.2d 1030 constitution, does not contain much like the federal Osloond, at 587. powers clause.1 See separation formal Nonetheless, into dif- very government of our division state’s throughout our presumed ferent branches has been doctrine. rise history give to vital P.2d Director, 232, 238-40, 552 See In Wn.2d re Juvenile of this doctrine (1976); Osloond, validity at 587. The being government depend on the branches does not The different off from another. hermetically sealed one if remain intertwined other partially branches must than maintain an effective checks system reason *6 government. In Juvenile balances, as well as effective re Director, mainly doctrine serves to ensure 239-40. The remain of each the fundamental functions branch inviolate. grounded in flex separation powers of doctrine will a definitive
ibility practicality, rarely offer not In re Ju boundary beyond which one branch tread. Director, at 240. venile of question to be not whether two branches asked is activities, coinciding whether
government engage the but rather integ- activity independence or of one branch threatens the rity prerogatives or invades the of another. (1975). In Piva, 85
Zylstra v.
Wn.2d
Unlike
damage
damage rights
by
people,
retained
directly
directly
violation accrues
separation
caused
The maintenance of
the branch invaded.
individual,
institutional,
inter
rather
than
powers protects
Schor,
478 U.S.
Comm’n
Commodity
Trading
ests.
Futures
(1986). In
851,
675, 106
adjudg
S. Ct. 3245
92 L. Ed. 2d
government
to one branch of
damage
ing
potential
another,
to examine
helpful
it is
incursion of
alleged
well as that
practice challenged
history
both the
Mistretta,
analogous practices. E.g,
branch’s
tolerance
on Sen
(allowing judicial participation
The crux
governmental
of
categorical
view
is founded on
argument
or
alleged
of
investigation
that the
maintain
They
functions.
137
Hence,
function.
solely
crimes is
an executive
potential
such an
that,
can be
believe
since
in
constitutionally
investigation,
judicial
participation
However,
powers
of
doctrine
separation
appropriate.
functions
governmental
so
nor are all
rigidly,
does
act
at
Zylstra,
categorization.
85 Wn.2d
specific
amenable
to
689-91,
Olson,
See
Morrison v.
654,
also
U.S.
750.
(1988)
569, 108
abandoning
(explicitly
L. Ed. 2d
S. Ct. 2597
in
attempts
categorize
separation
powers
to
functions
of
the in
primary
analysis). Although
responsibility
executive,
it
vestigation
potential
of
crimes lies with
a role
judiciary
plays
cannot
even
be doubted
instance,
is
filing
charges.
judges
formal
For
before the
which allow
to further
their
police
sue search warrants
investigations.
also
which
Judges
preside
grand juries,
over
in a
closely analogous
inquest proceedings.3
act
manner
to
See
judicial
2.36. These instances of
involvement
RCW
criminal
are not
investigations
activity
into potentially
Indeed,
have
and coor
unique.4
cooperation
we
noted
among
encouraged,
dination
the branches is
coercion
cooperation changes
when such
unwarranted
its
judiciary
authority
or intrusion should the
exercise
Zylstra, 85 Wn.2d
at
750.
separate
identity.
sustain its
us
our
of bi
to abandon
tradition
Respondents,
urging
government
founded on
investigations,
lateral
envision
synergistic
truce rather
than a
union.
distrustful
we
Considering
authorizing inquests,
first
statute
violation.
36.24 dates
perceive
virtually unchanged to the 1854 territorial
laws
back
grand jury
[that] has one foot in the
3A
has been described as "an institution
Request
judicial
in the executive.” In re
Access Grand
branch and
other
1987).
(11th
1438,
Materials,
Jury
unique
833 F.2d
CSr.
function of the
degree
judicial
grand jury
high
cooperation between the
and exec
necessitates a
Materials,
arrange
constitutionality
Jury
1444.
utive branches. Grand
Washington’s
unques
under
the federal constitution and
constitution
ment
both
Const,
Const,
5;
26.§
amend.
art.
tionable. U.S.
States,
investigation
judicially
perhaps
led
United
4In
the most famous
Supreme Court headed the
Earl Warren of the United States
Chief Justice
Mistretta,
Kennedy.
Washington.5 it predates the enactment of our state’s by years played constitution some has an active role 35 and legal in our have been system century. Judges for over assuming long the role and duties of coroners for as as Washington part has been the United States. Such long unchallenged heretofore association between the branches evidence of judicial prima executive and facie constitutionality of the statute. do that either of encompasses Nor we find this statute against in dangers traditionally guard pow- we First, action. the statute does not challenges judicial ers that are more assign judges properly district court tasks general Although the executive branch. accomplished by nature of coroners have been de- inquests investigatory, acting judicial capacity presiding as in a over such scribed Coroners, Anderson, Sheriffs, 1 Walter H. proceedings. (1941). 8, at 6 But accurately Constables described § Supreme Judicial Court Massachusetts: prosecution An a trial anybody. is not It is not statutory public anyone. exemplify pertinent provisions as an aid the achievement of policy that the serves has justice by obtaining as to whether a crime been information committed. Court, v. Justice Dist. 356 Mass.
Kennedy
coopera
involves
investigation
N.E.2d 201
Such
branches,
judicial
and thus
between the executive
tion
Zylstra,
See
undertaken
either branch.6
properly
to substitute "district 202, 204. ch. § RCW 3.30.015. Laws Richardson, 401, 160 rely exclusively 6Respondents on In 247 N.Y. almost re (1928) preside support proposition that a cannot over N.E. peripheral However, recognized investigation. even court "there merge re judicial into each other”. In and the administrative zones where the considering Richardson, separation of Most courts 247 N.Y. 413. practice. E.g., investigations upheld challenges judicial have State participation court of district do we find that Nor impermissi judges conducting inquests 2.36 under RCW judicial bly integrity of either the threatens the institutional *9 prac longstanding of nature or executive branches. enough his this amicable tice to alone demonstrate tory mortally cooperation branch. wounded either of has judges permits to as district court While RCW 36.24.160 mandate office, the it does not sume the duties of coroner’s voluntary cooperation Nonetheless, such an such accession. grand jury function, the is not harmful in this case. Like the holding inquests gray periphery of of falls in a zone at the Although judicial inquests both and branches. the executive judicial and that can described as both combine functions 7 inquest they so executive, in an are not the context of impermissibly the of to central to mission either branch as cooperation integrity with of either interfere the one. separation envisioned 36.24 does not violate the RCW powers doctrine.
Turning King County Executive Order next the implementing inquest procedure, find also the we that this 2.24.110(A) King County passes muster. Code constitutional inquests County authority Ex to conduct with vests the (AEP) part, § states, PHL 6.6 in ecutive. Executive Order 7-1 Presiding County request that "the Executive shall Judges Judge Association, in consulta of the District Court judge judges, to conduct the tion with other inquest”. Although furnish mandates that Executive Order to conduct Executive ask a district court Corp., Mackles, LaChapelle (1926); Shoe 187, 108 v. United Mach. So. 410 161 La. 808, (1945); Washington, 83 266 State Wis. 2d 318 Mass. N.E.2d N.W.2d 597 instance, inquest presides conducting over and instructs 7For officer opinion jury, inquiries, of the and certifies makes decisions as to the relevant However, judicial. traditionally thought jury. all that are These are functions prose genesis investigation of a criminal constitute the traditionally in to be executive which are considered cution. These functions categori Nonetheless, precise. descriptions than A are more heuristic such nature. analysis approach separation powers is at with the odds cal and abstract reality government. dynamic functional it does not mandate the District Court inquest, Hence, Association must
Judges provide judge. such a doctrine, of the the Execu- purposes independence tive more poses Order threat judiciary 36.24, does which also integrity than Given the permits judges inquests. district court to conduct longstanding between the execu- cooperation tradition we judicial conducting inquests, per- tive and branches with formal problems King County’s ceive no additional cooperation. codification of this
Delegation Concerns concerns that Executive express under both RCW scope authority has exceeded the his delegating inquest 36.24 Charter King County This was not raised judges. argument duties to district court court, Respondents’ Brief to the trial nor was it raised *10 Rather, it is now for the first opposition in to review. raised this court Normally, on in Brief. appeal Respondents’ time raised for the first will review claim of error which is not However, 2.4, as the RAP 2.5. time in a substantive brief. question undoubtedly and would wholly legal claim is remand, discretionary our we will exercise upon resurface Respondents’ claim. RAP 12.2. del- to review the authority on the unconsti- primarily premised are egation arguments the of the Executive Order under tionality issue, Having Respondents’ of that disposed doctrine. weakened. arguments substantially delegation coroner, to pursuant first that the argue The Respondents his 36.24, delegate to or has no whatsoever authority duties, similarly prohib- Executive is County her and so the authority this proposition, primary ited. As In relevant 11, our constitution. on section 4 of rely article this section states: part, county may for such provide . . Any home rule charter . carry perform necessary out and deemed
officers as be general law . . . provided by charter or county functions as all the of the courts. jurisdiction not . . but shall affect. charter, county con- shall adoption the such After such and benefits then rights, privileges powers, to have all the tinue general pow- All the by law. or conferred possessed thereafter county on of- imposed ers, granted and duties to and authority . . law, attorney . by general except prosecuting ficers legislative be in peace, shall vested justices specific in offic- county authority expressly of the unless vested may by resolution legislative authority by ers delegate ity the charter. any powers, author- its or administrative executive by expressly specific officers or duties vested charter, county or county employee or officers or officer employees. has no on the Executive Order here effect
Clearly, specifi of the courts. RCW 36.24.160 jurisdiction district contemplates conduct cally judges may district court infirmity is no inquests, coroner’s there constitutional remainder of constitu arrangement. with such responsibilities all provision simply provides tional will placed general on officials statutes accrue county by county. in a home rule county legislative authority county responsibilities may delegated, by Those either ordinance, or officer or or "any county charter officers This exactly or is what county employee employees”. has It has of the up responsibilities done. broken coroner, 36.24, as general law of RCW described most of the coroner’s duties to the division of the signing examiner, retaining authority medical but to conduct is Executive. Such division of labor inquests Const, art. precisely contemplated permitted by what an in prohibition There on such 4. constitutional § limit any Nor does this article further novative distribution. exist, would they executive. If such limits delegation legislative authority’s to be necessarily part have delegation itself. *11 delegation argu part Respondents’
The second Charter, King County 850 of the ment concerns section provides, part: which except power the
Any power the duty county or of a officer veto delegated by to an- county executive be that officer his employee supervision; officer or under control other provided, however, delegating shall that the officer continue perfor- power or the responsible for the exercise the delegated. duty mance of the
(Italics ours.) "may” Generally, "shall” are both when "may” provision, presumed that contained in the same it is duty, permissive indicates man indicates a while "shall” datory duty. Pacificorp, 167, 176-77, Clark Wn.2d mandatory duty placed Hence, on P.2d 162 the provision County or is that he she Executive power responsibility or for the exercise retain ultimate delegated duty. performance As in the Ex stated Order: ecutive determining responsible for King County Executive is held, authority inquest delegating for an shall be
whether to a of Limited Jurisdiction within inquest to conduct Court timely man- King County, scheduling inquest and for ner. § mandates Order 8.1. Executive Order also
Executive County report be forwarded to from the § were the Executive Order 8.3. Even Executive. officer, than a district an executive rather be conducted King judge, County retain little Executive could court indepen- places responsibility, as 36.24 certain more conducting mandatory duties on whoever dent (witness testimony inquest. Kg., must be RCW 36.24.080 manslaughter suspected); writing if murder or reduced to (arrest be issued warrant must RCW 36.24.100 homicide). person in the None- found to have been involved theless, Executive has retained it is clear that responsibility inquests. ultimate permits delega- expressly Charter While the supervision county employee under the control and to a tion County Executive, it not mandate that this does of the only possible. delegation Indeed, section of another form of partic- specific "[t]he statement charter cautions that limiting powers shall not be construed ular executive King County county executive.” executive Moreover, case least in the 320.20. Charter appearance county police involved, in which into death
143 inquest be held should dictate that of fairness concerns8 high degree independence exercising by an official ultimately responsible County Executive, from the who is holding police an tois conduct. The reason for independent opinion objective, nonpartisan an obtain surround- the cause death and the circumstances as to ing 36.24.020, It is for reason that death. RCW .040. this county RCW coroner is an elected official. by An an officer under the 36.16.030. conducted provide could not direct control of the Executive impartiality public expects necessary assurances inquest. is Not Executive from powers, delegation fairness dictate bound in his concerns assign inquest task someone of his that he outside authority, judge. as a immediate such district court Supremacy Clause argue also Order Executive impermissibly 36.24, with invalid conflicts RCW so is Washington supremacy under clause. clause State’s That "Any county may its states: . . . make and enforce within police, sanitary regulations limits all such local and other Const, general §11, not in 11. are conflict with laws.” art. yield subject on An ordinance must either oftwo on the same statute grounds: leaving preempts field, if the statute jurisdiction, if a no room concurrent or conflictexists be tween the two that cannot be harmonized. (1992). Luvene,
Tacoma v.
Wn.2d
his or alleged gaps by Respondents involve
The conflicts specifically Executive which dealt with statute Order, cases, conflict. In some and so do not create direct mandatory permits are made activities that the statute (prosecutor Compare the Executive Order.9 36.24.020 coroner) present Execu- at and assist with (AEP) (prosecutor app. 9.1, shall PHL tive Order 7-1 participate inquest). cases, In the district court other beyond given responsibilities outlined in RCW those *13 do not contravene or render but these extra duties 36.24, chapter. Compare nugatory in RCW the outlined that duties (if manslaughter jury finds murder or commit- 36.24.070-.110 persons ted, warrant for not in coroner must issue arrest along custody, jury’s verdict, the wit- with or deliver the magistrate charging statements, of in the case nesses’ to the already custody) person a (AEP) in Order PHL with Executive 7-1 (district judge jury’s app. 9.1, court to deliver Executive). Clearly, findings King County when the stat- to different, but not con- executive order contain ute flicting, the conducting inquest requirements, person the the comply requirements. course, the most must with both Of the statute’s use of would be between irreconcilable conflict King County’s to substitute term "coroner” and decision judge place However, in of as district court such coroner. problems above, with such a substitu- there no discussed any irreconcilable conflict We do not find direct and tion. and the Executive Order. between statute faulty potential point prosecutor’s of the one of conflict arises because 9We note February understanding inquest proceedings. of his role in the On Judge appears attempt prosecutor be to de which to sent letter to Leverette However, authority scope prosecutor inquest. has no of the lineate called, promulgate must summon "[t]he Once an is coroner such limitations. who, any jury, opinion every person, in his or her or and examine . . . of of ours.) (Italics knowledge prosecutor’s 36.24.050. The role the facts.” RCW has of record; however, jury developing it is for the judge a full factual is aid properly inquired in or jury be into to decide what matters must alone simply being prosecu statutory duty. of than arm the der to fulfill their Rather itself, oper tor, inquest, examiner’s office must much like the medical a coroner’s objective Cyril independent, opinion. entity See separate which renders an ate as a Wecht, Cause Death 251 Jury Empaneling
Method scope clarify we also ask that "jury inquest” jurors pool A will be chosen. from which body persons number, but or fewer as "a six defined persons, or before the coroner summoned fewer than four inquire particular officer, facts.” RCW other ministerial 2.36.010(7). notify requires the coroner RCW 36.24.020 superior provide jury, and that the court to Generally, jurors specified in RCW 2.36. selected jurors countywide superior source lists. draw from courts "may juries However, be se 2.36.055. district court RCW population of the area served lected at random from may rely Hence, on district courts the court.” RCW 2.36.050. jurors geographic range. There much from a narrower particular specific lim lists or mention the statute inquest. choosing jury However, itations be used for superior courts, rather than does state that the statute provide jury. courts, are to district King County Executive, Moreover, who re 36.24.020. conducting inquests, authority is a tains coun ultimate tywide properly re Thus, RCW 2.36 more elected official. quires inquest jury broader, from the that an be chosen geo countywide superior court list rather than the source *14 graphically by limited list district courts. used sum, 36.24 and
In we hold that RCW Executive Order (AEP) separation PHL 7-1 powers are constitutional under Similarly, that the Executive we find Order doctrine. authority King County Executive’s under did not exceed Although King County be- differences Charter. there 36.24, Order and RCW we hold tween Executive magnitude of a between there are no conflicts constitutional interpret Finally, to we RCW 2.36 the statute and the order. inquest juries countywide require from be chosen injunction entered the trial source lists. We dissolve County may proceed inquest. with this court. Dolliver, Smith, Guy, Johnson,
Andersen, C.J., and Madsen, JJ., concur. —
Utter, rea- (concurring) agree majority’s J. I with the soning in this to the district emphasize case write County Executive’s court has the discretion to decline the hold an if court a conflict of request inquest perceives problem accepting or a of powers interest attests majority The Executive Order cited request. the district this fact.101 cite it to avert misapprehension obliged request court is to accede to the Executive’s a proceeding. to hold such Utter,
Brachtenbach, J., with J. concurs 20, 1994.] En Banc. October [No. 60507-6. Jeffrey Washington, Respondent, State Krall, Donald Appellant. 10Section7.0 PROCEDURES:
Responsibilities: Action receiving Prosecuting Attorney’s Upon recommenda- Executive 7.3 tion, inquest to be held. determines whether an held, King County requests that the If is to 7.4 Executive’s District conduct the on the Court according Appendix Rules in 9.1. behalf Court Presiding Judge Requests of the District 7.4.1 Association, Judges conjunction with Court judges, to to conduct the other furnish inquest. responsibility accepts the con- the District Court 7.5 If begin. ducting inquest, date schedules *15 (AEP). (Italics mine.) King County PHL 7-1 Executive Order